E-Alert Case Updates

Landowner Failed to Present Sufficient Evidence of Unity to Place Issue of Separation Damages Before the Jury

Mary Rose Greene v. District of Columbia
Case No.: 11-CV-1626 (District of Columbia Court of Appeals, December 6, 2012)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion from the District of Columbia Court of Appeals, the Court upheld the trial court’s Motion in Limine ruling holding that the landowner was not entitled to receive separation damages in this governmental takings matter.

Landowner/Appellant Mary Rose Greene was the owner of multiple plots of real property totaling approximately eight and a half acres of land in the Southeast quadrant of the District of Columbia. Ms. Greene contended that she intended to develop the property, but as of 2004 it remained wooded and unused. The land at the bottom of this crescent-shaped property was about a block away from Skyland Shopping Center.

As part of the District’s plan to improve the Skyland Shopping Center area, it offered to buy the property, which Ms. Greene rejected. Therefore, in July 2005 the District filed suit to take Ms. Greene’s property and determine just compensation under D.C. CODE § 16-1311 (2001). The District and Ms. Greene each engaged an appraiser who filed expert reports opining as to the fair market value of the taken property. Each side’s expert agreed that the best method of valuation under the circumstances was to look at contemporaneous sales of comparable properties.

The District sought to take seven acres of Ms. Green’s real property, and leave her in possession of one and a half acres of the land. There was no question that it was for the jury to determine the value of the seven acres of land taken by the government. Ms. Greene argued, however, that she was also entitled to separation damages, that is, the amount the untaken property had been devalued by virtue of it no longer being part of a larger segment of land.

Ms. Greene’s expert acknowledged, however, that the untaken land could still be developed with houses by Ms. Greene despite the loss of the other land. The District filed a motion in limine in which it argued that Ms. Greene could not present evidence of severance damages absent a showing of unity of use. The trial court granted the motion, and evidence of severance damages was not permitted at trial.

The jury found that Ms. Greene was entitled to $1,850,000.00 as opposed to the nearly ten million dollars Ms. Greene’s appraiser contended the property was worth. Ms. Greene appealed the decision to the Court of Appeals, contending that the Superior Court improperly barred her from presenting evidence of separation damages.

The Court of Appeals noted that the matter of separation damages was one of first impression in the District of Columbia, and an issue on which the condemnation statute is silent. The statute provides only that the jury shall “hear and receive any evidence offered or submitted on behalf of the District of Columbia and by any person having an interest in the proceeding,” D.C. CODE § 16-1317 (2001). The question is whether the untaken property has unity with the whole that has been separated.

The Court noted that the issue of whether the property was so integrated is one that is a mixed question of law and fact. Therefore, it is necessarily a question of fact for the jury or designated trier of fact, unless reasonable minds could not differ on the issue.

The Court stated, “thus, had Ms. Greene come forward with some evidence that District’s taking deprived her of a reasonably foreseeable integrated use of her taken land with her untaken land, thereby diminishing the untaken land’s current market value, Ms. Greene would have been entitled to present a claim of severance damages to the jury.” Greene at 21-22. But, because she failed to proffer evidence that could support a reasonably foreseeable unity, the trial court properly precluded her from presenting severance damages.